Opinion
No. COA17-305
01-02-2018
STATE OF NORTH CAROLINA v. DOUGLAS MCLEAN REEVES, Defendant.
Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph E. Herrin, for the State. Edward Eldred, for Defendant.
An unpublished opinion of the North Carolina Court of Appeals does not constitute controlling legal authority. Citation is disfavored, but may be permitted in accordance with the provisions of Rule 30(e)(3) of the North Carolina Rules of Appellate Procedure. Madison County, No. 14CRS50528 Appeal by Defendant from judgment entered 23 September 2016 by Judge J. Thomas Davis in Madison County Superior Court. Heard in the Court of Appeals 17 October 2017. Attorney General Joshua H. Stein, by Special Deputy Attorney General Joseph E. Herrin, for the State. Edward Eldred, for Defendant. MURPHY, Judge.
"When law enforcement observes contraband in plain view, no reasonable expectation of privacy exists, and thus, the Fourth Amendment's prohibition against unreasonable warrantless searches is not violated." State v. Grice, 367 N.C. 753, 756, 767 S.E.2d 312, 315-16 (citation omitted), cert. denied, ___ U.S. ___, ___, 192 L. E2. 2d 882 (2015). However, for the plain view exception to apply, law enforcement cannot violate the Fourth Amendment "in arriving at the place from which the evidence could be plainly viewed." Id. at 756-57, 767 S.E.2d at 316 (citations omitted). Moreover, if this area is claimed to be the curtilage of a home, we must consider "whether the area in question is so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." Id. at 760, 767 S.E.2d at 318 (citation omitted).
Douglas McLean Reeves ("Defendant") appeals from his judgments for trafficking in marijuana by manufacture and trafficking in marijuana by possession. On appeal, Defendant argues the trial court committed plain error by denying his motion to suppress because the plain view exception did not apply to justify the warrantless seizure of marijuana from his property. We disagree, and hold the trial court did not commit plain error by denying Defendant's motion to suppress.
Background
On 22 August 2014, residents of the Reems Cove Road area in Madison County became upset that contractors of the French Broad Electric Company ("FBEC") were going across their yards to clear vegetation surrounding power lines in the area. Initially, the FBEC right-of-way manager was sent to the scene; however, unable to resolve the dispute, the FBEC called the Madison County Sheriff's Office, which dispatched Deputy Russell Shepherd to the scene.
Before Deputy Shepherd arrived, Defendant, a neighbor to the residents involved in the dispute, drove by the scene and stopped to speak with the residents. After speaking with the residents, Defendant told the FBEC right-of-way manager that he also did not want the contractors clearing the vegetation on his property. The right-of-way manager told Defendant that he needed to contact the FBEC office to make this request. Defendant left the scene without contacting the FBEC office. The FBEC right-of-way manager testified, without objection, that he suspected Defendant did not want the contractors on his property because he was growing marijuana, and "[m]ost marijuana growers don't want their marijuana sprayed."
When Deputy Shepherd arrived, he settled the dispute between the contractors and residents. After the dispute was settled, the right-of-way manager asked Deputy Shepherd to accompany the contractors to Defendant's property to "keep the peace," and informed Deputy Shepherd about his belief that Defendant was growing marijuana on the property. Deputy Shepherd agreed to accompany FBEC's crew to Defendant's property, and followed the right-of-way manager and the contractors to Defendant's residence in his patrol vehicle.
Deputy Shepherd and the contractors drove "up a small road" to get to Defendant's residence. When they arrived, Defendant was not there. Defendant's residence was "a camper sitting on top of the hill[,] right beside the power line." There were outbuildings on either side of the home, vehicles parked in front of the home, and the yard was well kept. To the left of the home, there was a power line pole and a non-visible right-of-way. The property did not have a fence, a "no trespassing" sign, or anything else that would have limited access to the area surrounding the home.
Although the right-of-way was not officially marked, Deputy Shepherd testified that he could clearly see when you were in the power line right-of-way versus when you were not in the right-of-way based on where the vegetation was previously killed. --------
Deputy Shepherd drove up Defendant's driveway and parked his vehicle "right in front of [Defendant's home.]" After parking, Deputy Shepherd got out of his vehicle and walked across Defendant's yard to watch FBEC's crew spray vegetation surrounding the power line poles. Deputy Shepherd walked underneath the power lines and stood in the power line right of way, approximately 150 to 200 feet from Defendant's home, and watched the crew begin their work. While standing in the right-of-way and watching the crew, Deputy Shepherd looked to his left and saw what appeared to be four or five marijuana plants, about 50 to 60 feet away, off the edge of the power line. Deputy Shepherd used his previous training in detecting marijuana plants by sight and smell to make this determination. He walked over to the plants and still believed them to be marijuana. After Deputy Shepherd saw the marijuana plants, he walked back to where he was initially standing, looked up, and saw Defendant standing by the home.
Deputy Shepherd walked up to Defendant and asked him if the marijuana plants belonged to him. Defendant told Deputy Shepherd that the marijuana plants belonged to him. After calling his office to report the marijuana plants, Deputy Shepherd obtained Defendant's consent to search the home and the vehicles parked in front of the home. Deputy Shepherd did not find any additional marijuana plants in the home or the vehicles.
Deputy Lamar Worley arrived to Defendant's residence, and obtained Defendant's permission to search the outbuilding to the right of the home. Inside the outbuilding, Deputy Worley discovered marijuana drying, and some dried marijuana in a box. Deputy Shepherd continued to search the surrounding area. In the woods and some nearby laurels, Deputy Shepherd found additional marijuana plants. Defendant admitted that all of the marijuana plants belonged to him.
Defendant was indicted for trafficking in marijuana by possession, trafficking in marijuana by manufacture, and possession with the intent to sell and deliver marijuana. Defendant filed a pre-trial motion to suppress any and all evidence seized during the search of his property, arguing that the seizure violated the Fourth Amendment. The trial court denied Defendant's motion to suppress, concluding that no violation of the Fourth Amendment occurred. In support of its order, the trial court found, inter alia: (1) "[a]ll the marijuana plants, other than the ones found in the outbuilding, were found in the wooded area around the [home] a substantial distance away from it . . . and not proximate to the [home;]" (2) "[t]he property was not fenced or otherwise enclosed nor was there any notice indicating no admittance or restrictions to the property[;]" (3) "[t]here was nothing to indicate that the view or entering of the property was in any way restricted[;]" and (4) [t]here was no indication that the area where the growing plants were found was being otherwise used by [Defendant], nor anyone else, other than as open land."
Additionally, the trial court ruled: (1) "all of the marijuana plants, other than the ones found in the outbuilding, . . . were found . . . outside of the curtilage and yard area around [the home;]" (2) "the initial location of marijuana was seen in plain view from a public power line right of way in an open wooded area[;]" and (3) Defendant "had no expectation of privacy within the power line right of way, nor in the wooded areas outside of the curtilage of the [home] where the growing plants were found."
At trial, Defendant did not object to the admission of the seized marijuana into evidence. Defendant testified that he planted all of the seized marijuana plants in "[l]ate May and June" for his "own personal use." Further, he testified that he expected each plant to yield "maybe an ounce to a plant[,]" but he did not expect to harvest the plants until October or November.
On 23 September 2016, the jury returned verdicts of guilty for trafficking in marijuana by manufacture, trafficking in marijuana by possession, and possession of marijuana in excess of one and one-half ounces. The trial court arrested judgment on the possession of marijuana in excess of one and one-half ounces conviction. Defendant was sentenced to two 25 to 39 month terms of imprisonment to be run consecutively, and imposed two $5,000 fines. Defendant gave notice of appeal in open court.
Analysis
Defendant argues the trial court committed plain error by denying his motion to suppress because the plain view exception did not apply to justify the warrantless seizure of marijuana plants from his property, as Deputy Shepherd violated the Fourth Amendment in arriving at the place from which he could view the marijuana plants. We disagree.
Parties are required to assert "a timely request, objection, or motion, stating the specific grounds for the ruling the party desired the court to make if the specific grounds were not apparent from the context" to preserve an issue for appellate review. N.C. R. App. P. 10(a)(1) (2017). Here, Defendant's pre-trial motion to suppress evidence was denied by the trial court. Subsequently, at trial, Defendant failed to object to the admission of the evidence that was subject to his suppression motion. Thus, Defendant failed to preserve the trial court's failure to grant his motion to suppress as an issue on appeal. See State v. Barden, 356 N.C. 316, 332, 572 S.E.2d 108, 120 (2002) (citations omitted) ("[A] pretrial motion to suppress evidence is not sufficient to preserve for appellate review the issue of whether the evidence was properly admitted if the defendant fails to object at the time the evidence is introduced at trial.").
However, on appeal, "[i]n criminal cases, an issue that was not preserved . . . may be made the basis of an issue presented on appeal when the judicial action questioned is specifically and distinctly contended to amount to plain error." N.C. R. App. P. 10(a)(4). Here, Defendant specifically and distinctly argues the trial court committed plain error by denying his motion to suppress. Therefore, we review for plain error.
When reviewing for plain error, "we initially determine if the trial court erred by denying Defendant's suppression motion and then ascertain whether any error committed by the trial court rose to the level of plain error." State v. Harwood, 221 N.C. App. 451, 456, 727 S.E.2d 891, 896 (2012). To demonstrate plain error, a defendant must show "that a fundamental error occurred at trial. To show that an error was fundamental, a defendant must establish prejudice—that, after examination of the entire record, the error 'had a probable impact on the jury's finding that the defendant was guilty.' " State v. Lawrence, 365 N.C. 506, 518, 723 S.E.2d 326, 334 (2012) (quoting State v. Odom, 307 N.C. 655, 660, 300 S.E.2d 375, 378 (1983)) (citations omitted).
Review of a motion to suppress is "strictly limited to determining whether the trial judge's underlying findings of fact are supported by competent evidence, in which event they are conclusively binding on appeal, and whether those factual findings in turn support the judge's ultimate conclusions of law." State v. Cooke, 306 N.C. 132, 134, 291 S.E.2d 618, 619 (1982) (citations omitted). The trial court's "findings are conclusive on appeal if supported by competent evidence, even if the evidence is conflicting." State v. Cockerham, 155 N.C. App. 729, 736, 574 S.E.2d 694, 699 (2003) (citation and quotation marks omitted). When "the trial court's findings of fact are not challenged on appeal, they are deemed to be supported by competent evidence and are binding on appeal." State v. Biber, 365 N.C. 162, 168, 712 S.E.2d 874, 878 (2011) (citation omitted). "Competent evidence is evidence that a reasonable mind might accept as adequate to support the finding." State v. Chukwu, 230 N.C. App. 553, 561, 749 S.E.2d 910, 916 (2013) (citation and quotation marks omitted). "Conclusions of law are reviewed de novo and are subject to full review." Biber, 365 N.C. at 168, 712 S.E.2d at 878 (emphasis omitted).
Defendant challenges: (1) the trial court's finding of fact 4, specifically, that Deputy Shepherd parked his vehicle "on the side of" Defendant's driveway; and (2) the trial court's conclusion of law that Defendant's rights under the Fourth Amendment were not violated by the warrantless seizure of the marijuana plants.
A. Finding of Fact 4
The trial court found that Deputy Shepherd drove up Defendant's driveway, close to the front of the home, "about 100 feet off the public road[,] and parked on the side of the driveway." Deputy Shepherd testified that he drove up Defendant's driveway and parked his vehicle "right in front of [Defendant's home.]" On cross-examination, Deputy Shepherd affirmed that he parked along the gravel area in front of Defendant's home. Deputy Shepherd also used Defense Exhibit Three—a photograph depicting the front of Defendant's home and driveway—to indicate where he parked his vehicle.
On appeal, it is unclear where, exactly, Deputy Shepherd indicated on Defense Exhibit Three that he parked. However, the Exhibit was properly admitted into evidence. Based on Deputy Shepherd's testimony that he parked "right in front of [Defendant's home]," in addition to his use of Defense Exhibit Three to illustrate where he parked, a reasonable mind might accept that the evidence adequately supports the trial court's finding that Deputy Shepherd "parked on the side of the driveway." Thus, there is competent evidence to support the trial court's finding of fact 4, and the finding was not in error.
B. Conclusion of Law
Defendant contends the trial court erred by concluding that no violations of his Fourth Amendment rights occurred during the warrantless seizure of the marijuana plants, because all evidence of wrongdoing was collected after an illegal entry and search. After a careful consideration of the location of law enforcement and the marijuana, we disagree.
The Fourth Amendment protects "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures[.]" U.S. Const. amend. IV. A search compromises privacy interests; a seizure deprives an individual of dominion over their person or property. Horton v. California, 496 U.S. 128, 133, 110 L. Ed. 2d 112, 120 (1990). "[A] Fourth Amendment search does not occur . . . unless 'the individual manifested a subjective expectation of privacy in the object of the challenged search,' and 'society [is] willing to recognize that expectation as reasonable.' " Kyllo v. United States, 533 U.S. 27, 33, 150 L. Ed. 2d 94, 101 (2001) (quoting California v. Ciraolo, 476 U.S. 207, 211, 90 L. Ed. 2d 210, 215 (1986)).
"When law enforcement observes contraband in plain view, no reasonable expectation of privacy exists, and thus, the Fourth Amendment's prohibition against unreasonable warrantless searches is not violated. Instead, the Fourth Amendment analysis must consider whether a subsequent warrantless seizure of the items left in plain view was reasonable." Grice, 367 N.C. at 756, 767 S.E.2d at 315-16 (internal citation omitted). A warrantless seizure of an item may be lawful under the plain view exception if three elements are met:
(1) the officer must have been in a place where he had a right to be when the evidence was discovered; (2) the evidence must have been discovered inadvertently; and (3) it must have been immediately apparent to the police that the items observed were evidence of a crime or contraband.State v. Lupek, 214 N.C. App. 146, 150, 712 S.E.2d 915, 918 (2011) (citation omitted). Here, Defendant argues the plain view doctrine is not applicable since Deputy Shepherd impermissibly travelled through the curtilage of Defendant's home in order to view the marijuana plants.
"Privacy expectations are highest in one's home." Grice, 367 N.C. at 756, 767 S.E.2d at 315 (citation omitted). In contrast, open fields—even if privately owned—"may be reasonably traversed by law enforcement under the Fourth Amendment." Id. at 760, 767 S.E.2d at 318 (citation omitted). "The curtilage is the area immediately surrounding and associated with the home[,] . . . which serves as the buffer between the intimate activities of the home and the prying eyes of the outside world." Id. at 759, 767 S.E.2d at 317-18 (internal citations and quotation marks omitted). Fourth Amendment protection over curtilage is somewhere between the protection afforded to the home, and the protection afforded to open fields. Id. at 760, 767 S.E.2d at 318. We particularly reference four factors to resolve whether an area is considered part of the curtilage of the home for Fourth Amendment purposes:
[1] the proximity of the area claimed to be curtilage to the home, [2] whether the area is included within an enclosure surrounding the home, [3] the nature of the uses to which the area is put, and [4] the steps taken by the resident to protect the area from observation by people passing by.United States v. Dunn, 480 U.S. 294, 301, 94 L. Ed. 2d 326, 334-35 (1987) (citation omitted). "These considerations are important not because they will yield[ ] a correct answer to all extent-of-curtilage questions. . . . [but because] they bear upon the centrally relevant consideration—whether the area in question is so intimately tied to the home itself that it should be placed under the home's umbrella of Fourth Amendment protection." Grice, 367 N.C. at 760, 767 S.E.2d at 318 (quoting Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 334-35) (internal quotation marks omitted) (applying the Dunn factors, to rule that an unfenced portion of the property, fifteen yards from the home, that bordered a wood line was "closer in kind to an open field" than to the curtilage).
Accordingly, we turn to the Dunn factors to determine whether the area Deputy Shepherd crossed in front of the home should be considered part of Defendant's curtilage for Fourth Amendment purposes. We conclude the real property traversed by Deputy Shepherd was closer in kind to an open field than it was to the paradigmatic curtilage, which protects the privacies of life inside the home.
Applying the Dunn factors, we first consider the proximity of the area to the home. Deputy Shepherd parked his vehicle in Defendant's driveway, about 100 feet from the public road. Deputy Shepherd got out of his vehicle, walked across Defendant's yard to the power line right-of-way, and stood in the middle of the right-of-way, approximately 150 to 200 feet from Defendant's home, and saw the marijuana plants. Second, we consider that the area was not included in an enclosure surrounding the home, although there were outbuildings on either side of the home, vehicles parked in front of the home, and the yard was well kept. Third, we consider that the record does not indicate that the area of the yard Deputy Shepherd walked across to arrive at the right-of-way was in use in any particular way. Fourth, we consider that the property did not have a fence, a "no trespassing" sign, or anything else that would have limited access to the area surrounding the home.
Based on these considerations, neither the area where Deputy Shepherd parked his vehicle on the side of Defendant's driveway nor the path that Deputy Shepherd took across Defendant's yard was "so intimately tied to the home itself that it should be placed under the home's 'umbrella' of Fourth Amendment protection." See Dunn, 480 U.S. at 301, 94 L. Ed. 2d at 335. These areas were not within an enclosure surrounding the home, Defendant did not exhibit any particular use of these areas, and Defendant did not exhibit any intent to keep these areas private. Thus, these areas cannot be considered to be within the curtilage of Defendant's home. Accordingly, Deputy Shepherd did not violate Defendant's expectation of privacy in arriving at the place from which he could view the marijuana plants. Therefore, the plain view exception and the open fields doctrine applied, and the warrantless seizure of the marijuana plants was not unreasonable.
Conclusion
For the reasons stated above, the plain view exception to the warrant requirement of the Fourth Amendment applied when Deputy Shepherd viewed the marijuana plants. We hold the trial court did not err by denying Defendant's motion to suppress. Thus, we need not review whether the alleged error amounted to plain error.
NO ERROR.
Judge BRYANT concurs.
Judge ARROWOOD concurs in result only.
Report per Rule 30(e).